French v. Gifford

31 Iowa 428

• Court: Supreme Court of Iowa
• Decided: April 27, 1871
• Status: Published

Opinion

Miller, J.—

The report of the refereee. in all respects, except as to the amount of the receiver’s compensation, seems to be entirely satisfactory to both parties. At all events no other objection is made thereto.

Two questions are presented for our determination, namely: What sum should be allowed the receiver for his services, and against which party ought they to be adjudged.

I. On the first question we have, after a careful consideration of all the circumstances of the case, come to the conclusion that the amount of compensation allowed the receiver by the referee is too great.' While we concede that the receiver should receive a compensation corresponding to the high degree of business capacity, integrity, and responsibility required in cases of this character, and which was secured in the person of the receiver in this case, yet we feel it our duty to allow only such sum as will be such reasonable compensation.

. There can be no reasonable grounds to doubt that the receiver in this case, or some other person possessing equal qualifications, could have been employed by private contract to perform the services rendered in this case for half the amount allowed by the referee. This, it seems to us, is the fair and reasonable test by which the amount of compensation to be allowed should be determined. While it may be true that an individual of the required qualifications, if engaged in a lucrative private business, could not be induced to abandon such business for a temporary appointment of this character without extraordinary compensation, yet one of wealth and leisure may readily be found (as in this case), who would undertake the trust for a reasonable and ordinary compensation. We would not be warranted in allowing extraordinary compensation unless in a case of imperative necessity.

Under all of the facts and circumstances of this case we are of opinion that the sum of $3,000 is a reasonable and fair compensation to the receiver for his personal services. And that amount will be allowed him.

II. It is insisted by plaintiff’s counsel, that the compensation of the receiver should be paid out of the fund of which he had the custody and charge, and that he should be permitted to retain the same therefrom. Numerous cases have been cited to show that such is the uniform practice. Upon an examination of these cases it will be found that in every case there was no question made as to the legality or propriety of the appointment of the receiver; that in each case the receiver closed up the business and settled his accounts in pursuance of his appointment. The receivership in each case was for the benefit of those interested in the fund, and he was paid therefrom, which is only another method of apportioning the costs upon those entitled to the fund. The only ease which has been brought to our attention,- in which the order appointing the receiver was set aside, is the case of Verplank v. The Mercantile Insurance Co., 2 Paige, 438, and in that case the chancellor ordered the receiver to turn over all the property, without allowing him any commissions therefrom.

Ve think it would be an unjust and inequitable rule, if in all cases the receiver should be entitled to his compensation from the fund in his hands, without reference to the legality of his appointment. Under the operation of such a rule, innocent persons might be made to suffer great loss.

The general rule as to costs, both at law and in equity, is that they shall be adjudged to the successful and against the unsuccessful party. Rev., § 3449.

And they will be so adjudged, unless there exists some equitable consideration to justify a different disposition, or the case is otherwise provided for by law. In cases like the one under consideration, we may adjudge the costs to one or either of the parties, or apportion them.

In view of all the facts and circumstances, we order that in addition to the other costs and expenses allowed, including clerk hire, rent, taxes, étc., to the receiver out of the fund, as shown by the report of the referee, said fund be charged with one-third of the compensation herein allowed to the receiver, viz., $1,000, and that the other $2,000 be adjudged against the plaintiff. With these modifications, the report of the referee is

Approved.